Francisco Chavez v. Raul M. Gonzales and National Telecommunications Commission, G.R. No.

168338, February 15, 2008

DECISION
(En Banc)

PUNO, J.:

I. THE FACTS

As a consequence of the public release of copies of the Hello Garci compact disc audiotapes
involving a wiretapped mobile phone conversation between then-President Gloria Arroyo and Comelec
Commissioner Virgilio Garcillano, respondent DOJ Secretary Gonzales warned reporters that those
who had copies of the CD and those broadcasting or publishing its contents could be held liable under
the Anti-Wiretapping Act. He also stated that persons possessing or airing said tapes were committing
a continuing offense, subject to arrest by anybody. Finally, he stated that he had ordered the National
Bureau of Investigation to go after media organizations found to have caused the spread, the
playing and the printing of the contents of a tape.

Meanwhile, respondent NTC warned in a press release all radio stations and TV network
owners/operators that the conditions of the authorization and permits issued to them by government
like the Provisional Authority and/or Certificate of Authority explicitly provides that they shall not use
their stations for the broadcasting or telecasting of false information or willful misrepresentation. The
NTC stated that the continuous airing or broadcast of the Hello Garci taped conversations by radio
and TV stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the
Provisional Authority and/or Certificate of Authority. It warned that their broadcast/airing of such false
information and/or willful misrepresentation shall be a just cause for the suspension, revocation
and/or cancellation of the licenses or authorizations issued to the said media establishments.

Subsequently, a dialogue was held between the NTC and the Kapisanan ng mga Brodkaster sa
Pilipinas (KBP) which resulted in the issuance of a Joint Press Statement which stated, among others,
that the supposed wiretapped tapes should be treated with sensitivity and handled responsibly.

Petitioner Chavez filed a petition under Rule 65 against respondents Secretary Gonzales and
the NTC directly with the Supreme Court.

II. THE ISSUES

1. Will a purported violation of law such as the Anti-Wiretapping Law justify

straitjacketing the exercise of freedom of speech and of the press?

2. Did the mere press statements of respondents DOJ Secretary and the NTC constitute a
form of content-based prior restraint that has transgressed the Constitution?

III. THE RULING

[The Court voted 10-5 (CJ Puno, joined by JJ. Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Carpio Morales, Azcuna, Reyes and Tinga in the majority, as against JJ.
Corona, Chico-Nazario, Nachura, Leonardo-De Castro and Velasco in the minority) in granting the
petition insofar as respondent Secretary Gonzalezs press statement was concerned. Likewise, it
voted 10-5 (CJ Puno, joined by JJ. Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-
Martinez, Carpio Morales, Azcuna, Reyes and Velasco in the majority, as against JJ. Corona, Chico-
Nazario, Nachura, Leonardo-De Castro and Tinga in the minority) in granting the same insofar as
NTCs press statement was concerned.]

1. NO, a purported violation of law such as the Anti-Wiretapping Law will NOT
justify straitjacketing the exercise of freedom of speech and of the press.
 A governmental action that restricts freedom of speech or of the press based on content is
given the strictest scrutiny, with the government having the burden of overcoming the
presumed unconstitutionality by the clear and present danger rule. This rule applies equally
to all kinds of media, including broadcast media.

Respondents, who have the burden to show that these acts do not abridge freedom of speech
and of the press, failed to hurdle the clear and present danger test. [T]he great evil which
government wants to prevent is the airing of a tape recording in alleged violation of the anti-
wiretapping law. The records of the case at bar however are confused and confusing, and
respondents evidence falls short of satisfying the clear and present danger test. Firstly, the various
statements of the Press Secretary obfuscate the identity of the voices in the tape
recording. Secondly, the integrity of the taped conversation is also suspect. The Press Secretary
showed to the public two versions, one supposed to be a complete version and the other, an
altered version. Thirdly, the evidence of the respondents on the whos and the hows of the
wiretapping act is ambivalent, especially considering the tapes different versions. The identity of the
wire-tappers, the manner of its commission and other related and relevant proofs are some of the
invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is even arguable
whether its airing would violate the anti-wiretapping law.

We rule that not every violation of a law will justify straitjacketing the exercise of
freedom of speech and of the press. Our laws are of different kinds and doubtless, some of
them provide norms of conduct which[,] even if violated[,] have only an adverse effect on a persons
private comfort but does not endanger national security. There are laws of great significance but their
violation, by itself and without more, cannot support suppression of free speech and free press. In
fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging
whether to restrain freedom of speech and of the press. The totality of the injurious effects of the
violation to private and public interest must be calibrated in light of the preferred status accorded by
the Constitution and by related international covenants protecting freedom of speech and of the
press. In calling for a careful and calibrated measurement of the circumference of all these factors to
determine compliance with the clear and present danger test, the Court should not be
misinterpreted as devaluing violations of law. By all means, violations of law should be
vigorously prosecuted by the State for they breed their own evil consequence. But to repeat, the
need to prevent their violation cannot per se trump the exercise of free speech and free
press, a preferred right whose breach can lead to greater evils . For this failure of the
respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option
but to uphold the exercise of free speech and free press. There is no showing that the feared violation
of the anti-wiretapping law clearly endangers the national security of the State.

2. YES, the mere press statements of respondents DOJ Secretary and the NTC
constituted a form of content-based prior restraint that has transgressed the
Constitution.

[I]t is not decisive that the press statements made by respondents were not
reduced in or followed up with formal orders or circulars. It is sufficient that the press
statements were made by respondents while in the exercise of their official functions .
Undoubtedly, respondent Gonzales made his statements as Secretary of Justice, while the NTC issued
its statement as the regulatory body of media. Any act done, such as a speech uttered, for and
on behalf of the government in an official capacity is covered by the rule on prior
restraint. The concept of an act does not limit itself to acts already converted to a
formal order or official circular. Otherwise, the non formalization of an act into an official
order or circular will result in the easy circumvention of the prohibition on prior
restraint. The press statements at bar are acts that should be struck down as they constitute
impermissible forms of prior restraints on the right to free speech and press.

Same; Freedom of Expression; In line with the liberal policy of the Supreme Court on locus standi
when a case involves an issue of overarching significance to our society, the Court brushes aside
technicalities of procedure and takes cognizance of the instant petition, seeing as it involves a
challenge to the most exalted of all the civil rights, the freedom of expression.In line with the liberal
policy of this Court on locus standi when a case involves an issue of overarching significance to our
society, we therefore brush aside technicalities of procedure and take cognizance of this petition,
seeing as it involves a challenge to the most exalted of all the civil rights, the freedom of
expression.The petition raises other issues like the extent of the right to information of the public. It is
fundamental, however, that we need not address all issues but only the most decisive one which in
the case at bar is whether the acts of the respondents abridge freedom of speech and of the press.

Freedom of Expression; Hierarchy of Rights; Freedom of expression has gained recognition as a

fundamental principle of every democratic government, and given a preferred right that stands on a
higher level than substantive economic freedom or other liberties.Freedom of expression has gained
recognition as a fundamental principle of every democratic government, and given a preferred right
that stands on a higher level than substantive economic freedom or other liberties. The cognate
rights codified by Article III, Section 4 of the Constitution, copied almost verbatim from the First
Amendment of the U.S. Bill of Rights, were considered the necessary consequence of republican
institutions and the complement of free speech. This preferred status of free speech has also been
codified at the international level, its recognition now enshrined in international law as a customary
norm that binds all nations.

Same; Same; In the Philippines, the primacy and high esteem accorded freedom of expression is a
fundamental postulate of our constitutional system; It is only when the people have unbridled access
to information and the press that they will be capable of rendering enlightened judgmentswe
cannot both be free and ignorant.In the Philippines, the primacy and high esteem accorded freedom
of expression is a fundamental postulate of our constitutional system. This right was elevated to
constitutional status in the 1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of
history, both political and legal, that freedom of speech is an indispensable condition for nearly every
other form of freedom. Moreover, our history shows that the struggle to protect the freedom of
speech, expression and the press was, at bottom, the struggle for the indispensable preconditions for
the exercise of other freedoms. For it is only when the people have unbridled access to information
and the press that they will be capable of rendering enlightened judgments. In the oft-quoted words
of Thomas Jefferson, we cannot both be free and ignorant.

Same; Freedom of the Press; To be truly meaningful, freedom of speech and of the press should allow
and even encourage the articulation of the unorthodox view, though it be hostile to or derided by
others, or though such view induces a condition of unrest, creates dissatisfaction with conditions as
they are, or even stirs people to anger.Freedom of speech and of the press means something more
than the right to approve existing political beliefs or economic arrangements, to lend support to
official measures, and to take refuge in the existing climate of opinion on any matter of public
consequence. When atrophied, the right becomes meaningless. The right belongs as wellif not more
to those who question, who do not conform, who differ. The ideas that may be expressed under this
freedom are confined not only to those that are conventional or acceptable to the majority. To be truly
meaningful, freedom of speech and of the press should allow and even encourage the articulation of
the unorthodox view, though it be hostile to or derided by others; or though such view induces a
condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.
To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought
that agrees with us.

Same; Same; Relativity of Liberties and Freedoms; The scope of freedom of expression is so broad
that it extends protection to nearly all forms of communicationit protects speech, print and
assembly regarding secular as well as political causes, and is not confined to any particular field of
human interest; The constitutional protection is not limited to the exposition of ideasthe protection
afforded free speech extends to speech or publications that are entertaining as well as instructive or
informative; While all forms of communication are entitled to the broad protection of freedom of
expression clause, the freedom of film, television and radio broadcasting is somewhat lesser in scope
than the freedom accorded to newspapers and other print media, as will be subsequently discussed.
The scope of freedom of expression is so broad that it extends protection to nearly all forms of
communication. It protects speech, print and assembly regarding secular as well as political causes,
and is not confined to any particular field of human interest. The protection covers myriad matters of
public interest or concern embracing all issues, about which information is needed or appropriate, so
as to enable members of society to cope with the exigencies of their period. The constitutional
protection assures the broadest possible exercise of free speech and free press for religious, political,
economic, scientific, news, or informational ends, inasmuch as the Constitutions basic guarantee of
freedom to advocate ideas is not confined to the expression of ideas that are conventional or shared
by a majority. The constitutional protection is not limited to the exposition of ideas. The protection
afforded free speech extends to speech or publications that are entertaining as well as instructive or
informative. Specifically, in Eastern Broadcasting Corporation (DYRE) v. Dans, 137 SCRA 628 (1985),
this Court stated that all forms of media, whether print or broadcast, are entitled to the broad
protection of the clause on freedom of speech and of expression. While all forms of communication
are entitled to the broad protection of freedom of expression clause, the freedom of film, television
and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and
other print media, as will be subsequently discussed.

Same; Same; Tests for Restraints on Freedom of Speech and Expression.Generally, restraints on
freedom of speech and expression are evaluated by either or a combination of three tests, i.e., (a) the
dangerous tendency doctrine which permits limitations on speech once a rational connection has
been established between the speech restrained and the danger contemplated; (b) the balancing of
interests tests, used as a standard when courts need to balance conflicting social values and
individual interests, and requires a conscious and detailed consideration of the interplay of interests
observable in a given situation of type of situation; and (c) the clear and present danger rule which
rests on the premise that speech may be restrained because there is substantial danger that the
speech will likely lead to an evil the government has a right to prevent. This rule requires that the evil
consequences sought to be prevented must be substantive, extremely serious and the degree of
imminence extremely high.As articulated in our jurisprudence, we have applied either the dangerous
tendency doctrine or clear and present danger test to resolve free speech challenges. More recently,
we have concluded that we have generally adhered to the clear and present danger test.

Same; Same; The press is the chief source of information on current affairs, the most pervasive and
perhaps most powerful vehicle of opinion on public questions, the instrument by which citizens keep
their government informed of their needs, their aspirations and their grievancesit is the sharpest
weapon in the fight to keep government responsible and efficient.Much has been written on the
philosophical basis of press freedom as part of the larger right of free discussion and expression. Its
practical importance, though, is more easily grasped. It is the chief source of information on current
affairs. It is the most pervasive and perhaps most powerful vehicle of opinion on public questions. It is
the instrument by which citizens keep their government informed of their needs, their aspirations and
their grievances. It is the sharpest weapon in the fight to keep government responsible and efficient.
Without a vigilant press, the mistakes of every administration would go uncorrected and its abuses
unexposed. As Justice Malcolm wrote in United States v. Bustos, 37 Phil. 731 (1918): The interest of
society and the maintenance of good government demand a full discussion of public affairs. Complete
liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp
incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile
and unjust accusation; the wound can be assuaged with the balm of clear conscience.

Same; Same; Four Aspects of Freedom of the Press.Philippine jurisprudence, even as early as the
period under the 1935 Constitution, has recognized four aspects of freedom of the press. These are
(1) freedom from prior restraint; (2) freedom from punishment subsequent to publication; (3) freedom
of access to information;and (4) freedom of circulation.

Same; Same; Same; Same; Same; A governmental action that restricts freedom of speech or of the
press based on content is given the strictest scrutiny in light of its inherent and invasive impact, and
only when the challenged act has overcome the clear and present danger rule will it pass
constitutional muster, with the government having the burden of overcoming the presumed
unconstitutionality.On the other hand, a governmental action that restricts freedom of speech or of
the press based on content is given the strictest scrutiny in light of its inherent and invasive impact.
Only when the challenged act has overcome the clear and present danger rule will it pass
constitutional muster, with the government having the burden of overcoming the presumed
unconstitutionality. Unless the government can overthrow this presumption, the content-based
restraint will be struck down.

Same; Same; Same; Press and Broadcast Media Dichotomy; Reasons; The dichotomy between print
and broadcast media traces its origins in the United Statesthere, broadcast radio and television
have been held to have limited First Amendment protection, and U.S. Courts have excluded broadcast
media from the application of the strict scrutiny standard that they would otherwise apply to
contentbased restrictions; The three major reasons why broadcast media stands apart from print
media are: (a) the scarcity of the frequencies by which the medium operates [i.e., airwaves are
physically limited while print medium may be limitless]; (b) its pervasiveness as a medium; and (c)
its unique accessibility to children.The regimes presently in place for each type of media differ from
one other. Contrasted with the regime in respect of books, newspapers, magazines and traditional
printed matter, broadcasting, film and video have been subjected to regulatory schemes. The
dichotomy between print and broadcast media traces its origins in the United States. There,
broadcast radio and television have been held to have limited First Amendment protection, and U.S.
Courts have excluded broadcast media from the application of the strict scrutiny standard that they
would otherwise apply to content-based restrictions. According to U.S. Courts, the three major
reasons why broadcast media stands apart from print media are: (a) the scarcity of the frequencies by
which the medium operates [i.e., airwaves are physically limited while print medium may be
limitless]; (b) its pervasiveness as a medium; and (c) its unique accessibility to children. Because
cases involving broadcast media need not follow precisely the same approach that [U.S. courts] have
applied to other media, nor go so far as to demand that such regulations serve compelling
government interests, they are decided on whether the governmental restriction is narrowly
tailored to further a substantial governmental interest, or the intermediate test.

SANDOVAL-GUTIERREZ, J., Concurring Opinion:

Freedom of Expression; Freedom of the Press; Prior Restraint; Garci Tapes; The threat of suspension,
revocation and/or cancellation of the licenses or authorization hurled against radio and television
stations should they air the Garci Tape is definitely a form of prior restraint.The threat of
suspension, revocation and/or cancellation of the licenses or authorization hurled against radio and
television stations should they air the Garci Tape is definitely a form of prior restraint. The license or
authorization is the life of every media station. If withheld from them, their very existence is lost.
Surely, no threat could be more discouraging to them than the suspension or revocation of their
licenses. In Far Eastern Broadcasting v. Dans, 137 SCRA 628 (1985), while the need for licensing was
rightly defended, the defense was for the purpose, not of regulation of broadcast content, but for the
proper allocation of airwaves. In the present case, what the NTC intends to regulate are the contents
of the Garci Tapesthe alleged taped conversation involving the President of the Philippines and a
Commissioner of the Commission on Election. The reason given is that it is a false information or
willful misrepresentation. As aptly stated by Mr. Justice Antonio T. Carpio that the NTC action in
restraining the airing of the Garci Tapes is a content-based prior restraint because it is directed at the
message of the Garci Tapes. Chavez vs. Gonzales, 545 SCRA 441, G.R. No. 168338 February 15, 2008